By bringing up the nomination of Texas Supreme Court Justice Priscilla Owen for the U.S. Court of Appeals for the 5th Circuit, Senate Majority Leader Bill Frist (R.-Tenn.) has done the right thing: He has opened the bomb-bay doors beneath the nuclear option.
Republican senators now have a duty they must not shirk: Support Frist when he drops the bomb. Judicial filibusters need to be vaporized—now.
Three things can be predicted with confidence as the Senate debates whether a minority of 41 members ought to be allowed under the rules to block final floor votes on judicial nominees.
??¢- First, if the Senate continues to allow judicial filibusters, only one party, the Democrats, will ever use them.
In the 216 years since the first Congress, only Democrats have used filibusters to block judicial nominees who had majority support in the Senate. Even they did not have the nerve to do so until 2003, when they blocked the confirmation of Miguel Estrada for the U.S. Court of Appeals for the District of Columbia.
When Republicans are in the minority, they not only refrain from using the filibuster to stop activist, left-wing, judicial nominations made by liberal Democratic presidents, they often praise those nominees and usually vote for them. When President Clinton nominated former ACLU lawyer Ruth Bader Ginsburg to the Supreme Court, for example, Sen. Orrin Hatch, who was the ranking Republican on the Judiciary Committee, and Sen. Bob Dole, who was the Senate Minority Leader, rushed to sing her praises. “She is going to make a very excellent justice,” said Hatch. “President Clinton made a good choice,” said Dole.
Hatch even expressly acknowledged that Ginsburg had passed a liberal, pro-abortion ideological litmus test imposed by Clinton. “[T]he President said that he is going to have a litmus test,” Hatch said, “so that’s a given as far as I’m concerned.” Yet, Republicans did not threaten to filibuster Ginsburg, and only three–Jesse Helms (N.C.), Don Nickles (Okla.) and Bob Smith (N.H.)–voted against her on principle.
Helms, Nickles and Smith are gone from the Senate. But John McCain of Arizona remains. In 1993, he meekly voted for Ginsburg. Today, he leads those Republicans trying to cut a deal with Democrats to stop Frist from ending judicial filibusters.
On MSNBC’s “Hardball” recently, McCain argued that Republicans should retain the judicial filibuster because they might need to use it in the future. Said McCain: “I say to my conservative friends, some day there will be a liberal Democrat president and a liberal Democrat Congress. Why? Because history shows it goes back and forth. I hope it’s 100 years from now, but it will happen. And do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?”
But McCain forgets one thing: Those liberal judges wouldn’t get 51 votes, they would get at least 52—because McCain himself would vote for them.
If neither McCain nor any of his Republican colleagues would filibuster Ruth Ginsburg when Bill Clinton nominated her, they are not going to filibuster a Ginsburg clone nominated by Hillary Clinton (or whoever happens to be the next Democratic President).
??¢- Second, if the Democratic minority retains the power to block judicial nominees with 41 votes, it will block any constitutionalists that President Bush or any future Republican President nominates to the Supreme Court.
The Democrats filibustered 10 of Bush’s appellate court nominees to set a precedent for their higher goal: Maintaining a liberal, activist majority on the Supreme Court that will enact by judicial decree a left-wing policy agenda the Democrats could not win in state legislatures or in the U.S. Congress.
If judicial filibusters are not ended, no person who shares the constitutionalist views of William Rehnquist, Antonin Scalia or Clarence Thomas will be confirmed to the Supreme Court.
??¢- Third, if Republicans let Democrats get away with creating a new Senate precedent of filibustering judicial nominees when there is a Republican President and a 55-member Republican Senate majority to confirm Supreme Court nominees, they will squander a once in a lifetime opportunity to redirect our renegade federal judiciary back toward respect for representative government and the U.S. Constitution.
A nine-member, life-tenured Supreme Court now decides by one-vote margins issues that cut to the core of American life. Frist did right to open the bomb-bay doors on the nuclear option. He deserves the moral support of the country—and the votes of all Republican senators—when he lets that bomb fall.